19.08.2019 passed in RA.No.66/2018 on the file of VI Addl.
2. For convenience, the parties are referred to based on
their ranking before the trial Court. The appellant was the
plaintiff and the respondents were the defendants.
3. Brief facts, leading rise to the filing of this appeal are
The plaintiff filed a suit against the defendants for
partition and separate possession in OS.No.50/2010. It is the
case of the plaintiff that one Boraiah was the original propositus
and he had two daughters namely Puttamma and Gowramma-
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the defendant No.5 herein. Puttamma died leaving behind
defendant Nos.1, 2 and 8. The plaintiff is the daughter of
defendant No.1. Defendant Nos.3 and 4 are the sons of the
defendant No.2. The defendant Nos.6 and 7 are the children of
the Gowramma i.e., defendant No.5. It is contended that the
suit schedule properties are the joint family properties of the
plaintiff and defendants and they are the members of Hindu
undivided joint family, and there is no partition effected
between the plaintiff and defendants. The husband of petitioner
was a manager and looking after the affairs of the joint family.
Defendant Nos.1, 2 & their father having no right have sold 2
acres in suit item No.2 in favour of Defendant No.9 under
registered sale deed and defendant No.1 executed a
Relinquishment deed in favour of Defendant No.2. The plaintiff
requested the defendants to effect the partition, but the
defendants refused to effect the partition. Hence, a cause of
action arose for the plaintiff to file a suit for partition and
separate possession. Accordingly, prays to decree the suit.
4. Defendant Nos.2 to 9 filed their written statements
and defendant Nos.5 to 7 and 9 also filed their additional
written statements. The defendants have admitted the
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relationship between the plaintiff and the defendants. It is
contended that the suit schedule item Nos.1 to 3 properties
originally belonged to Somaiah and his son Nanjaiah. They
have gifted it to Puttamma i.e., the grand mother of the
plaintiff and mother of defendants No.1, 2 and 8 under a
registered gift deed dated 02.04.1951. Gowramma had no
share in the suit schedule properties. Based on the registered
gift deed dated 02.04.1951, the name of the Puttamma came
to be entered in the revenue records. After her demise,
defendant Nos.1, 2 and 8 succeeded the suit schedule
properties under Section 15 of the Hindu Succession Act. It is
contended that there was a partition under panchayathi
palupatti dated 01.01.1996 between the defendant Nos.1, 2
and their father Shivalingaiah. Hence, defendant No.1 executed
a release deed regarding the suit schedule item No.2 in favour
of defendant No.2 by receiving ₹50,000/- from defendant No.
2. Hence, prays to dismiss the suit against defendant Nos.2 to
4 and 8.
5. Defendant Nos.5 to 7 filed a written statement, and
additional written statement by admitting the relationship
between the plaintiff and defendant Nos.1 to 8 and admitted
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that they constituted a Hindu undivided joint family and
Shivalingaiah was the manager of the joint family, who was
looking all the affairs of joint family. It is contended that,
Defendant Nos.5 to 7 have filed a suit against Defendant Nos.1,
2, 8 & 9 for partition and the said suit ended up in a
compromise and a compromise decree was drawn. And by
denying the remaining pleadings, it is contended that defendant
Nos.5 to 7 are entitled to 1/2 share in the suit schedule
properties and prayed to dismiss the suit in respect of suit item
Nos.1 and 2 of the suit schedule properties.
6. Defendant No.9 filed a written statement and an
additional written statement denying the averments made in
the plaint and prays to dismiss the suit.
7. The Trial Court, based on the above said pleadings,
framed the following issues:
1) Whether the plaintiff proves that she and
defendants No.1 to 8 have constituted a Hindu
Joint Family and the suit schedule properties
are their joint family properties?
2) Whether the plaintiff proves her 1/2 share in
the suit schedule properties?
3) Whether plaintiff proves that the sale deed
dated 18.05.2006 and relinquishment deed
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dated 17.11.2009 as well as compromise
decree in OS.No.3/2007 are not binding on
her share?
4) Whether defendants No.2 to 4 and 8 prove
that the court fee paid by the plaintiff is
insufficient?
5) Whether defendants No.2 to 4, 8 and 9 prove
the partition of the family properties between
the father of the plaintiff and the 2nd
defendant?
6) Whether defendants No.5 to 7 prove that the
compromise decree in OS.No.3/2007 is
collusive decree and sale deed dated
18.05.2006 as well as relinquishment deed
dated 17.11.2009 are outcome of fraud,
undue influence and coercion?
7) Whether plaintiff is entitled for the relief as
prayed?
8) Whether defendants No.5 to 7 are entitled for
the reliefs as prayed?
9) What order or decree?
8. To prove the case of the plaintiff, the GPA holder of
the plaintiff examined as PW-1, examined one witness as PW-2,
and marked 11 documents as Exs.P1 to P11. In rebuttal, on
behalf of the defendants, defendant No.9 was examined as DW-
1. on behalf of defendant No.9 his special attorney holder was
examined as DW-2 and marked 9 documents as Exs.D1 to D9.
The Trial Court after assessing the oral and documentary
evidence of the parties, answered issue Nos.1 to 5, 7 and 8 in
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the negative, issue No.6 does not survive for consideration, and
issue No.9 as per the final order. The suit of the plaintiff and
the counter claim of defendants Nos.5 to 7 were dismissed with
cost vide judgment dated 23.11.2017.
9. The plaintiff aggrieved by the judgment and decree
passed in the above said suit, filed an appeal in
R.A.No.66/2018 on the file of VI Addl. District & Sessions
Judge, Tumakuru. The plaintiff also filed an application in
I.A.No.1 for the condonation of delay of 44 days in filing an
appeal. The Appellate Court rejected the IA.No.1, and
Consequently dismissed the appeal. The plaintiff, aggrieved by
the judgments and decree, and order passed on IA by the
courts below, has filed this second appeal.
10. Heard the arguments of the learned counsel for the
parties.
11. Learned counsel for the plaintiff/appellant submits
that, there was a delay of 44 days in filing the appeal. It is
submitted that, the plaintiff was unwell and he was unable to
follow the proceedings before the Trial Court. He was not aware
of the judgment, and decree passed by the Trial Court. He
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submits that the plaintiff was prevented from filing the appeal
well within the time. In support of his arguments he also placed
his reliance on the judgment of the Hon'ble Apex Court in
the case of Collector Land Acquisition, Anantnag &
Another Vs Mst. Katiji & Ors, reported in (1987)2 SCC
107. It is submitted that the Appellate Court has not properly
considered the sufficient cause shown by the plaintiff. The
plaintiff cannot be thrown out of the court on technical grounds.
Hence, on these grounds he prays to allow the appeal.
12. Per contra, the learned counsel for defendant No.9
supports the impugned order and submits that there is a delay
in filing an appeal and the plaintiff has not shown sufficient
ground for condonation of a delay of 44 days in filing an appeal.
Hence, on these grounds, he prays to dismiss the appeal.
13. This court admitted the appeal to consider the
following substantial question of law.
Whether the First Appellate Court was justified in
dismissing the appeal on the ground of Limitation?
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14. It is not a dispute that the plaintiff filed a suit for
partition and separate possession. The defendant Nos.5 to 7
also filed a written statement and made a counter claim
regarding item No.3 of the suit schedule property. The parties
have led their evidence, the Trial Court dismissed the suit. The
plaintiff ought to have filed an appeal within 30 days from the
date of passing the impugned order. The plaintiff could not file
an appeal within 30 days, as the plaintiff was unwell and he
was advised to take bed rest. After recovery from the illness,
the plaintiff approached the counsel and handed over the file to
the learned counsel for preferring an appeal, thus the delay of
44 days is caused in preferring an appeal. The Appellate Court,
while considering the application under Section 5 of the
Limitation Act, must consider the said application liberally and
court cannot dismiss the application on a technical ground. The
Appellate Court committed an error in rejecting the application
filed for condonation of delay of 44 days in filing the appeal.
The order passed by the Appellate Court is contrary to the law
laid down by the Hon'ble Apex Court in the case of Collector
Land Acquisition, Anantnag & Another, supra. The plaintiff
has shown a sufficient Cause in not preferring an appeal before
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the first Appellate Court within the time. The first Appellate
Court ought to have allowed the appeal by condoning delay, on
the other hand, the first Appellate court rejected the
applications and, consequently, dismissed the appeal. The
order passed by the first Appellate Court is arbitrary and
erroneous, and the same is liable to be set aside. In view of the
above discussion, I answer substantial question of law in the
Negative.
15. In view of the aforesaid facts, and circumstances, I
proceed to pass the following:
ORDER
i. The Appeal is allowed.
ii. Impugned order on I.A.No.1 dated
19.08.2019 is set aside. Accordingly, IA.No.1
is allowed. The Delay of 44 days in filing an
appeal before the first Appellate Court is
condoned.
iii. The matter is remitted to the first Appellate
Court.
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iv. The first Appellate Court is directed to hear an
appeal on merits, and pass an appropriate
judgment in accordance with the law.
v. The Office is directed to transmit the records
to the first Appellate Court.
vi. The Parties are directed to appear before the
First Appellate Court on 15.04.2025 without
awaiting any notice.
vii. This court did not make any adjudication on
merits in issue.
viii. All the contentions of the parties are kept
open.
SD/-
(ASHOK S.KINAGI)
JUDGE
SRK
CT:SK
